364 

G18c 


*  V 


. 


Crime  and  Judicial  Inefficiency 


BY 

JAMES  W.  GARNER,  Ph.D.  g] 

Associate  Professor  of  Political  Science,  University  of  Illinois. 


Reprinted  from  THE  ANNALS  of  the  American  Academy 
of  Political  and  Social  Science  for  May,  1907 


PHILADELPHIA 

THE  AMERICAN  ACADEMY  OF  POLITICAL  AND  SOCIAL  SCIENCE 

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Price ,  25  cents . 


PUBLICATIONS  OF 

The  American  Academy  of  Political  and  Social  Science 

No.  537 


q  Gr  \8c 
%  pa.rr,' 


DEPARTMENT  OF  SOCIAL  WORK 


Crime  and  Judicial  Inefficiency 


BY 


JAMES  W.  GARNER,  Ph.D. 

Professor  of  Political  Science,  University  of  Illinois, 

Urbana,  Ill. 


Ex-President  Andrew  D.  White,  in  a  recent  address  at  Cornell  Univer¬ 
sity,  declared  that  as  a  result  of  extensive  studies  carried  on  through  a  long 
period  of  years  and  in  all  parts  of  the  Union  he  had  become  convinced  that 
the  United  States  leads  the  civilized  world,  with  the  exception  perhaps  of 
lower  Italy  and  Sicily,  in  the  crime  of  murder  and  especially  of  unpunished 
murders. 

The  truth  of  this  severe  arraignment  is  easily  established  by  reference 
to  the  statistics  of  crime  in  this  and  other  countries.  The  appalling  increase 
in  the  one  crime  of  murder  in  the  United  States  is  apparent  from  the  fol¬ 
lowing  table  compiled  by  the  Chicago  Tribune  and  published  in  its  issue  of 
December  ioth  last:1 

*1  cannot  verify  the  accuracy  of  the  above  statistics.  A  carefully  prepared 
table,  published  by  Judge  William  H.  Thomas,  of  Montgomery,  Ala.,  covering  the 
years  1881-1906  shows  substantially  the  same  results. 

(601 ) 


162 


The  Annals  of  the  American  Academy 


Year. 

Number 
of  murders 
and 

homicides 
in  the  U.  S. 

Number 
for  each 
million  of 
people. 

N umber  of 
executions 
in  the  U.  S. 

Number 
of  murders 
and 

homicides 
to  each 
execution. 

Number 

of 

lynchings. 

1885  . 

1,808 

32.2 

108 

17 

181 

1886 . 

L499 

26.1 

83 

18 

*33 

1887  . 

2,335 

39-8 

79 

29 

I2S 

1888  . 

2,184 

36.4 

87 

25 

144 

1889  . 

3,567 

58.2 

98 

36 

i75 

1890  . 

4,290 

68.5 

102 

42 

123 

1891  . 

5,9°6 

92.4 

123 

56 

i93 

1892  . 

6,791 

104.2 

107 

63 

230 

1893  . 

6,615 

99-5 

,  126 

52 

200 

1894 . 

4,9,800 

144-7 

132 

73 

<»  189 

i895  . 

10,500 

152.2 

132 

79 

166 

1896 . 

10,652 

i5i-3 

122 

87 

131 

1897 . 

9,52° 

132.8 

128 

74 

166 

1898 . 

7,840 

107.2 

109 

72 

127 

1899 . 

6,225 

83.6 

131 

87 

107 

1900  . 

8,275 

108.4 

117 

7i 

115 

I90I  . . . 

7,852 

100.9 

1 18 

67 

*35 

1902  . 

8,834 

hi. 7 

144 

61 

96 

1903  . 

8,976 

1 12 

124 

72 

104 

I9°4 - ► . . 

8,' '482 

ytf  *  . 

104-4 

1 16 

73 

87 

V . 

131*951  < 

1  '  0^  > 

2,286 

57 

2,917 

It  will  be  seen  from  the  above  table  that  within  the  space  of  twenty  years 
the  number  of  homicides  has  increased  nearly  400  per  cent;  that  the  propor¬ 
tion  of  thirty-two  homicides  to  each  million  of  the  population  has  grown 

to  one  hundred  and  four,  and  that  the  number  of  legal  executions  has 

remained  substantially  what  it  was  when  the  number  of  homicides  was  only 
one-fourth  as  great  as  now.  Compared  with  conditions  in  other  lands,  the 
situation  in  the  United  States,  as  revealed  by  the  statistics  quoted  above,  is 
not  only  disgraceful  to  American  civilization,  but  is  highly  serious  and 
deserves  the  thoughtful  consideration  of  all  good  citizens.  As  against 
nearly.  9,000  homicides  in  the  United  States  in  1903,  only  32^  were  reported 
in  the  German  Empire,  with  approximately  sixty  million  inhabitants ;  only 
322  in  England  and  Wales,  with  a  population  of  thirty-two  and  a  half 
million;  526  in  France,  with  a  population  of  thirty-eight  million,  and  61  in 
the  Dominion  of  Canada,  with  a  population  of  five  million.  With  112 
homicides  to  each  million  of  the  population  in  the  United  States  in  1903, 
England  and  Wales  had  less  than  10  (1902),  France  isxA  (1899),  the  German 

Empire  less  than  5  (1899),  and  Canada  about  12  (1903).  In  the  city  of 

Chicago  in  1906  one  hundred  and  eighty-seven  homicides  were  reported,  as 
against  twenty-four  in  London,  with  a  population  three  times  as  great, 
twenty-two  in  Paris  and  forty-four  in  Berlin,  including  attempted  murders. 
The  worst  feature  about  the  situation  in  the  United  States  is  the  small 
number  of  convictions  and  executions,  the  latter  being  but  little  more  than 
one  per  cent  of  the  homicides,  one  in  seventy-three  (1904),  while  the 

(602) 


Crime  and  Capital  Punishment 


163 


number  of  lynchings  exceeds  the  number  of  legal  executions.2 3  With  187 
homicides  in  Chicago  last  year,  there  were  but  two  cases  of  capital  punish¬ 
ment,  and  the  Cook  County  jailer  informs  me  (April,  1907)  that  there  are 
no  murderers  awaiting  execution. 

These  facts  need  little  comment.  Taken  in  connection  .with,  the  statistics^, 
of  the  increase  of  other  crime  than  murder,  they  reveal  a  reign  of  lawless¬ 
ness,  a  disrespect  for  constituted  authority  and  a  judicial  inefficiency  without 
a  parallel  in  any  other  civilized  country.  Dr.  Cutler,  in  his  interesting 
volume  on  “Lynch  Law,”  shows  that  during  the  last  twenty  years  more  than 
3,000  persons  have  been  put  to  death  in  the  United  States  by  lynch  law, 
whereas,  according  to  the  statement  of  a  well-known  American  jurist,  there 
has  not  been  a  case  of  lynch  law  in  England  for  seventy-five  years,  and 
possibly  the  same  may  be  said  of  Canada,  which  is  separated  from  the 
United  States  only  by  an  imaginary  boundary  line.3  1  Everywhere  in  the 
United  States  we  find  an  increasing  disposition  upon  the  part  of  the  people 
to  “take  the  law  into  their  own  hands”  as  they  say,  where  there  have  been 
flagrant  failures  of  justice,  and  inflict,  by  mob  law  that  pppUhrnent  whhfli 
should  alone  be  the  function  of  the  courts.^  The  causes  for  the  extraordinary 
increase  of  crime  in  the  United  States  are  due  partly  to  the  tolerant  attitude 
of  the  people  toward  the  criminal  class  and  nartlv  to  the  lax  administration 
of  the  criminal  law,  which,  by  impairing  popular  confidence  in  the  efficiency 
of  the  courts,  fosters  the  mob  spirit  among  all  classes,  and  by  the  uncertainty 
or  failure  with  which  it  metes  out  punishment  encourages  the  violation  of 
law.  There  is,  as  ex-President  White  has  pointed  out,  too  much  sham 
humanitarianism,  too  much  overwrought,  maudlin  sentimentality  in  favor 
of  the  criminal  and  too  little  appreciation  of  the  rights  of  society.  In  spite 
of  the  extraordinary  increase  of  the  crime  of  murder,  we  hear  it  said  that 
the  state  has  no  right  to  put  murderers  to  death.4  Convicted  criminals  of 
the  worst  type  are  pardoned  through  personal  sympathy  for  their  families, 

2These  statistics  are  compiled  mainly  from  the  tables  of  the  Chicago  Tribune, 
the  estimates  of  Judge  Thomas,  referred  to  above,  and  the  Statesman’s  Year  Book. 
See  also  tables  of  statisics  in  the  Chicago  Record-Herald  for  July  3,  1906.  Statis¬ 
tics  recently  collected  by  the  New  York  World  show  that  in  1904,  out  of  216 
convicted  murderers  in  the  prisons  of  New  York  State,  only  five  were  awaiting 
execution,  and  that  of  2,107  murderers  held  for  trial  in  that  state  during  the  ten 
years  from  1896  to  1905  only  32  were  capitally  punished. 

3Several  well-informed  Canadians  inform  me  that  they  have  never  heard 
of  a  case  of  lynching  in  the  Dominion,  and  upon  inquiry  I  have  received  similar 
testimony  regarding  the  German  Empire. 

4Mayor  Dunne  of  Chicago  has  recently  expressed  this  opinion.  The  offenses  of 
robbery,  burglary  and  assaults  upon  women  in  this  city  during  the  last  year  have 
been  so  numerous  and  bold  as  to  cause  general  alarm.  A  bill  fixing  the  death  pen¬ 
alty  for  these  offenses  is  now  before  the  legislature.  One  of  the  senators  from 
Chicago,  in  advocating  the  bill,  declared  that  there  were  communities  in  his  dis¬ 
trict  in  which  the  citizens  were  constantly  terrorized.  Women,  he  declared,  could 
not  venture  on  the  streets  even  in  daylight  without  being  assaulted,  and  if  they 
resisted,  murdered.  The  city  council  passed  a  resolution  memorializing  the  legis¬ 
lature  to  prescribe  the  death  penalty  for  assaults  on  women  and  children,  but  until 
there  is  a  different  public  attitude  toward  crime  there  is  little  likelihood  that 
this  will  be  done. 

(603) 


164  The  Annals  of  the  American  Academy 

sometimes  upon  the  ridiculous  representation  that  they  have  made  "brave 
fights”  against  "fearful  odds”  for  their  lives,  not  infrequently  upon  petitions 
signed  by  the  judge  and  jury  who  made  the  conviction  or  by  those  of  the 
community  who  have  been  wronged.  One  of  the  worst  traits  of  American 
civilization,  as  compared  with  that  of  England  and  some  of  the  countries 
on  the  continent,  is  the  general  disrespect  for  law  among  all  classes.  To  one 
familiar  with  the  law-abiding  instincts  of  the  English  people  and  their  regard 
for  authority  the  lawlessness  of  Americans  seems  strange  indeed,  consider¬ 
ing  the  racial  identity  of  the  two  peoples  and  the  similarity  of  their  legal 
institutions. 

To  a  large  extent  conditions  in  America  are  due,  as  I  have  said,  to 
inefficient  administration  of  the  criminal  law — are  the  result,  to  use  the 
language  of  Justice  Brown,  of  the  United  States  Supreme  Court,  of  the 
failure  of  the  courts  to  discharge  their  natural  functions.  This  view  is  no 
longer  confined  to  the  ranks  of  laymen,  but,  and  it  is  an  encouraging  sign, 
the  best  and  most  candid  judges  and  practitioners  are  beginning  to  admit 
that  there  are  communities  in  the  United  States  where  there  has  been  a 
virtual  breakdown  of  the  administration  of  criminal  justice.5  The  causes 
of  this  inefficiency  are  not  far  to  seek.  They  arise  mainly  from  a  cumber¬ 
some  and  antiquated  procedure  which  is  slow  to  start,  which  permits  un¬ 
necessary  delay  in  expediting  trials  once  begun,  which  attaches  undue 
importance  to  technicalities,  as  a  result  of  which  the  fundamental  question 
of  establishing  the  guilt  or  innocence  of  the  accused  is  subordinated  to 
mere  matters  of  practice  and  procedure,  that  is,  primarily  to  the  attainment 
of  technical  perfection.  In  the  second  place,  the  workings  of  the  jury 
system  in  the  form  in  which  it  exists  in  the  American  states,  together  with 
a  too  wide  latitude  of  appeal,  are  responsible  for  a  large  proportion  of  the 
miscarriages  of  justice  and  the  escape  of  criminals  from  deserved  punish¬ 
ment. 

The  constitutions  of  all  the  states  guarantee  to  the  accused  a  "speedy” 
trial,  but  there  are  few  communities  where  this  guaranty  is  anything  more  than 
an  empty  declaration.  Nearly  everywhere  the  jails  are  full  of  prisoners  who 
have  waited  months  for  trial,  and  everywhere  the  dockets  of  the  courts 
are  congested  with  cases  which  cannot  be  reached  for  months  or  years.  It 
was  put  in  evidence  before  the  New  York  State  Commission  on  the  Law’s 
Delay  in  1903  that  on  the  first  of  November  of  that  year  there  were 
10,000  untried  jury  cases  on  the  calendar  of  the  first  department  of  the 
Supreme  Court  of  that  state.  The  court  was  then  three  years  behind  with 
its  work,  and  it  required  from  one  and  a  half  to  two  years  to  reach  a  jury 
trial  in  King’s  County  and  in  the  eighth  judicial  district  (Western  New 

5Hon.  William  H.  Taft,  a  man  who  has  had  large  experience  both  at  the 
bar  and  on  the  bench,  recently  declared  in  an  address  at  Yale  University  :  “I  grieve 
for  my  country  to  say  that  the  administration  of  the  criminal  law  in  all  the  states 
of  this  Union  (there  may  he  one  or  two  exceptions)  is  a  disgrace  to  our  civiliza¬ 
tion.”  Judge  Amidon,  of  the  United  States  District  Court  for  the  District  of 
North  Dakota,  recently,  in  an  adddress  before  the  Minnesota  Bar  Association,  ex¬ 
pressed  a  similar  opinion  of  our  system  of  criminal  justice. 


Crime  and  Capital  Punishment 


165 

York).6  The  clerk  of  the  Superior  Court  of  Cook  County,  Illinois,  writes 
me  that  at  the  beginning  of  the  present  year  12,653  cases  were  pending 
before  the  Superior  Court  and  18,828  cases  before  the  Circuit  Court.  During 
the  last  two  years  these  courts  have  made  notable  progress  toward  clearing 
their  calendars,  although  the  former  is  still  more  than  a  year  behind  and  the 
latter  about  two  years  in  arrears  with  its  work.  In  some  of  the  other  states 
conditions  are  even  worse  than  those  here  described.  Aside  from  the  injury 
to  the  accused,  the  effect  of  such  delays  is  often  to  defeat  the  ends  of 
justice.7  During  the  long  period  intervening  between  the  commission  of 
the  offense  and  the  beginning  of  the  trial  witnesses  sometimes  die,  or  remove 
from  the  jurisdiction  of  the  court,  or,  owing  to  the  infirmities  of  memory, 
forget  material  facts  in  regard  to  the  crime,  and,  what  is  a  common  occur¬ 
rence,  public  interest  in  the  case  subsides,  thus  removing  that  pressure  which 
is  one  of  the  chief  incentives  to  induce  the  state’s  attorney  to  prosecute 
the  case.  The  judicial  annals  of  all  our  states  are  full  of  flagrant  instances 
of  the  breakdown  of  justice  on  account  of  the  delays  in  bringing  cases  to 
trial.  At  this  moment  I  recall  a  case  reported  in  the  press  dispatches  last 
July  of  a  man  who  was  kept  in  a  Milwaukee  jail  for  ten  months  awaiting 
trial  on  a  charge  for  which  the  maximum  punishment  was  ninety  days’ 
imprisonment.8  An  “outrageous”  instance  of  such  a  delay,  to  use  the  lan¬ 
guage  of  an  Illinois  lawyer,  is  afforded  by  the  Iroquois  Theatre  fire  case. 
The  fire  occurred  on  December  30,  1903,  resulting  in  the  loss  of  nearly  six 
hundred  lives,  and  two  months  later  the  owner  of  the  theatre  was  indicted. 
The  indictment  was  held  under  advisement  three  months  by  the  judge  and 
then  quashed.  On  March  4,  1905,  a  new  indictment  was  made,  and  it  was 
held  by  the  judge  for  a  period  of  seven  and  a  half  months.  Then  an  entire 
week  was  spent  in  arguing  the  question  of  a  change  of  venue.  Finally,  in 
March,  1907,  about  four  years  and  three  months  after  the  fire,  the  case  was 
brought  to  trial  only  to  result  in  the  acquittal  of  the  defendant  upon  instruc¬ 
tions  from  the  court  that  the  building  ordinances  under  which  the  indict¬ 
ment  had  been  found,  were  defective — that  is,  the  verdict  was  based  not  on 
the  merits  of  the  case  (the  judge  said  the  defendant  might  be  morally 

6JEteport  of  Commission  on  the  Law’s  Delay,  pp.  8,  17. 

? This  is  particularly  true  as  regards  civil  controversies.  Mr.  Wheeler  H.  Peck- 
ham,  chairman  of  the  New  York  Commission  on  the  Law’s  Delay,  related  before  that 
body  an  instance  illustrating  this  fact.  He  said  he  had  a  case  in  which  there 
were  two  witnesses,  and  while  waiting  fifteen  months  for  an  opportunity  to  bring  it 
to  trial  one  of  the  witnesses  died  and  the  other  moved  away.  He  concluded,  there¬ 
fore,  that  it  would  be  better  to  abandon  the  case,  and  so  it  was  dropped.  (Commis. 
on  Law’s  Delay,  p.  169.)  Justice  Gaynor,  testifying  before  the  same  commission 
concerning  the  necessity  of  bringing  commercial  cases  to  trial  speedily  if  they 
were  to  be  tried  at  all,  declared  that  such  cases  could  rarely  “live  more  than  three 
months,  and  that  in  three  years  they  were  as  dead  as  a  door  nail.”  {Ibid.,  p.  273.) 

8One  of  the  causes  ox  delay  in  bringing  cases  to  trial  is  the  grand  jury  sys¬ 
tem.  After  arrest  and  hearing  before  a  magistrate,  the  accused  must  be  held  to 
await  the  action  of  a  grand  jury  that  may  not  be  summoned  within  three  or  four 
months.  The  remedy  is  that  already  adopted  in  a  considerable  number  of  states 
and  which  has  existed  in  Connecticut  nearly  a  hundred  years,  namely,  to  authorize 
trials  upon  information  by  the  state’s  attorney  subject  to  certain  restrictions  in 
the  interest  both  of  the  criminal  and  of  sociey. 


The  Annals  of  the  American  Academy 


1 66 


guilty  but  not  legally  guilty)  but  rather  on  a  technicality.  That  criminal 
prosecutions  may  be  more  promptly  initiated  and  rapidly  expedited  the  expe¬ 
rience  of  England  affords  abundant  evidence.  It  is  the  practice  there  to 
bring  the  accused  before  a  magistrate  within  a  few  hours  after  his  arrest 
and  commit  him  to  the  next  session.  Rarely  three  months  elapse  between  the 
committment  and  the  infliction  of  the  punishment  if  he  is  found  guilty.9 

After  the  case  has  been  reached  on  the  calendar  there  is  the  delay  of 
impaneling  the  jury — a  delay  which,  under  the  practice  of  most  of  our 
states,  is  coming  more  and  more  to  be  an  intolerable  evil.  This  proceeding, 
as  Justice  Brown  well  observes,  ought  never  consume  more  than  an  hour  or 
two,  and  under  the  English  procedure  this  is  the  rule.  Two  flagrant  instances 
of  this  evil  were  recently  afforded  by  the  Gilhooley  and  Shea  cases  in  Chi¬ 
cago.  In  the  former  case  nine  and  a  half  weeks  were  required  to  select  the 
jury,  involving  an  examination  of  4,150  talesmen,  and  at  a  cost  of  some  twenty 
thousand  dollars  to  the  state.  The  selection  of  the  first  Shea  jury  required 
thirteen  weeks,  the  summoning  of  10,000  veniremen,  the  examination  of  4,716 
talesmen  at  a  cost  of  $40,000  to  the  state,  and  over  $20,000  to  the  defendant, 
and  there  is  no  reason  to  believe  that  the  jury  finally  chosen  were  any  better 
qualified  than  the  first  twelve  men  examined.10  The  court  permitted  counsel 
to  introduce  false  issues  and  ask  irrelevant  questions  concerning  their  social, 
religious  and  business  affiliations,  thus  laying  the  foundations  for  indefensi¬ 
ble  challenges.11  I11  the  Gilhooley  trial  counsel  for  the  defense  interrogated  one 
of  the  jurors  nearly  two  hours,  mostly  on  immaterial  matters,  and  the  state’s 
attorney  put  him  through  a  similar  ordeal,  the  request  of  the  state  that  thirty 
minutes  be  made  the  maximum  time  for  the  examination  having  been  denied 
by  the  court.  According  to  the  English  practice  the  requirements  of  due 
process  of  law  in  the  selection  of  juries  are  satisfied  by  the  simple  inquiry 
whether  the  prospective  juror  is  in  any  way  related  to  the  defendant,  and  if  he 
knows  of  any  reason  why  he  is  unable  to  return  a  verdict  in  accordance  with 
the  law  and  the  evidence.  In  the  second  Shea  trial  the  judge  followed  this 

9It  is  refreshing  to  note  a  marked  awakening  of  sentiment  among  the  judges 
to  the  evil  described  above.  Recently  Judge  Barnes,  of  Chicago,  declared  that 
“the  trouble  with  our  criminal  law  is  that  offenders  are  not  brought  quickly  enough 
to  trial.  If  a  man,  as  soon  as  he  commits  a  crime,  could  he  brought  immediately 
to  trial  and  sentenced  forthwith  we  should  have  a  very  great  decrease  of  crime.” 
State's  Attorney  Healy,  of  Cook  County,  has  expressed  a  similar  opinion. 

10T.  Newton  Crane,  Esq.,  formerly  a  member  of  the  St.  Louis  bar  hut  for  some 
years  past  a  prominent  barrister  of  London,  in  a  letter  to  Hon.  Joseph  H.  Choate 
under  date  of  March  31,  1903,  speaking  of  the  English  procedure  of  impaneling 
juries,  said  :  “The  examination  of  jurors  on  their  voir  dire  is  absolutely  unknown 
in  England,  while  many  lawyers  who  have  been  in  practice  for  twenty  years  or 
more  have  never  known  a  juror  to  he  objected  to  or  excused  for  cause.  It  not 
infrequently  happens  that  the  same  twelve  jurymen  will  hear  three  cases  without 
leaving  the  box.”  (Report  Commis.  on  Law’s  Delay,  p.  111.) 

“Another  illustration  of  the  practice  of  irrelevant  interrogatories  in  the  selec¬ 
tion  of  juries  was  recently  offered  by  the  Iroquois  Theater  fire  case,  where  counsel 
for  the  defendant  asked  prospective  jurors  whether  they  had  any  prejudices  against 
dancing,  whether  they  were  fond  of  music,  whether  they  believed  in  theater-going, 
whether  they  were  prejudiced  against  city  people,  whether  any  of  their  families 
were  ever  hurt  in  a  fire,  what  newspapers  they  had  read,  etc. 

(606) 


Crime  and  Capital  Punishment 


1 67 


sensible  rule  and  the  jury  was  selected  in  twelve  days.  He  refused  to  permit 
the  disgraceful  wrangling,  dilatory  obstructions  and  rambling  long-drawn-out 
and  irrelevant  interrogations  which  marked  the  proceeding  by  which  the  first 
jury  had  been  impaneled. 

The  remedies  for  most  of  the  evils  that  have  grown  up  in  connection 
with  the  selections  of  juries  are:  The  prohibition  of  irrelevant  examinations, 
the  making  of  the  decision  of  the  trial  judge  final  upon  objections  to  questions 
asked  prospective  jurors,  and  the  forbidding  of  reversals  upon  such  decisions 
unless  they  amount  to  a  clear  abuse  of  discretion,  a  substantial  reduction  of 
the  number  of  challenges  allowed,  provision  for  special  venires  in  important 
cases,  and  the  amelioration  of  the  conditions  of  jury  service  by  treating 
jurors  not  like  prisoners  undergoing  punishment,  but  as  citizens  performing 
an  honorable  public  service.12 

The  progress  of  the  trial  after  the  selection  of  the  jury  is  often 
unnecessarily  hindered  by  slavish  adherence  to  rules  of  procedure  which  are 
prolix,  antiquated  in  many  particulars  and  honeycombed  with  technicalities 
which  to  a  layman  seem  to  have  no  other  purpose  than  to  delay  judgment 
or  provide  loopholes  of  escape  for  criminals.  Indictments  which  are  not 
loaded  down  with  meaningless  verbiage  and  which  do  not  go  into  an  absurd 
degree  of  particularity — which,  in  short,  do  not  conform  in  the  minutest  detail 
to  the  technical  requirements  of  the  “sacred”  forms  of  procedure,  are 
quashed.  Every  prosecuting  officer  knows  how  difficult  it  is,  on  account  of 
the  insistence  of  the  courts  upon  technical  accuracy,  to  frame  an  indictment 
that  will  be  sustained.13  Not  infrequently  ingenious  counsel  who  have  hopeless 
cases  refrain  from  demurring  to  indictments  which  they  know  to  be  techni¬ 
cally  faulty  in  order  that  they  may  move  for  new  trials  in  case  their  clients 

12It  is  not  strange  that  a  man  who  is  confronted  by  the  prospect  of  being 
dragged  away  from  his  home  and  business  and  kept  in  a  state  of  virtual  imprison¬ 
ment  for  weeks  and  months  should  profess  prejudice  or  exaggerate  possible  sym¬ 
pathies  in  order  to  escape  the  hardships  incident  to  such  service.  State’s  Attorney 
Healy  of  Chicago,  recently  stated  the  matter  correctly  when  he  declared  that  the 
tendency  of  the  professional  and  business  man  to  avoid  jury  service  is  due  to  the 
failure  of  the  law  to  provide  a  more  expeditious  procedure  for  the  trial  of  cases. 
That  the  amelioration  of  the  conditions  of  jury  service  would  diminish  the  difficul¬ 
ties  of  impaneling  juries  was  shown  in  the  second  Shea  trial,  when  Judge  Kava- 
nagh  announced  that  jurors  would  be  treated  more  humanely  and  that  instead 
of  being  locked  up  like  prisoners  they  would  be  treated  with  the  consideration 
due  citizens  performing  a  public  duty.  With  this  assurance  the  selection  of  the 
jury  proceeded  at  a  rate  which,  as  compared  with  the  first  trial,  was  expeditious 
enough. 

13Reversals  have  been  granted  for  the  omission  or  inclusion  of  qualifying  words 
or  even  the  abbreviation  of  the  name  of  the  state  in  whose  name  the  indictment  is 
brought.  A  recent  instance  of  the  difficulty  experienced  in  framing  an  indictment 
free  from  technical  flaws  was  afforded  by  the  case  of  Senator  Burton,  of  Kansas, 
who  was  charged  with  improperly  accepting  a  retainer  for  the  use  of  his  influence 
before  the  Postoffice  Department.  Three  successive  indictments  were  drawn,  one 
of  which  was  quashed  because  of  a  mere  variation  as  to  where  the  money  was 
received,  whether  at  Washington  or  Kansas  City,  a  fact  which  had  no  relation  to 
the  guilt  or  innocence  of  the  accused  and  which  might  well  have  been  considered 
as  immaterial.  The  state’s  attorney  barely  succeeded  in  drawing  a  good  indict¬ 
ment  before  the  statute  of  limitations  began  to  run  against  the  case. 


168  The  Annals  of  the  American  Academy 

are  convicted.  If  the  indictment  is  sustained  there  is  always  a  probability 
that  the  case  will  be  postponed,  when  called,  on  account  of  the  unprepared¬ 
ness  of  counsel,  the  absence  of  material  witnesses  or  similar  causes.  Every¬ 
one  has  known  of  notorious  cases  to  be  continued  until  finally  the  popular 
demand  for  prosecution  subsided,  and  the  state’s  attorney,  through  sheer 
worry  or  lack  of  interest,  dropped  the  case  and  turned  the  criminal  loose. 
Here,  as  in  other  respects,  the  English  procedure  is  an  improvement  upon 
that  followed  generally  in  the  American  states.  Except  for  sickness,  evidence 
of  which  must  be  produced  in  writing,  an  English  judge  will  not  permit  con¬ 
tinuances  or  adjournments.  No  request  to  have  a  case  stand  over  or  to  go 
to  the  next  term  merely  for  the  convenience  of  counsel,  says  a  prominent 
London  barrister,  would  be  listened  to.14 

The  progress  of  the  trial  is  frequently  unnecessarily  delayed  by  the  method 
of  examining  witnesses15  and  by  protracted  arguments  over  questions  concern¬ 
ing  the  admissibility  of  evidence.  It  is  a  common  complaint  against  our 
method  of  criminal  procedure  that  too  much  time  is  wasted  over  technical 
objections  to  evidence.  Here  again  the  English  practice  of  forbidding  long- 
drawn-out  arguments  on  such  questions  might  well  be  followed  in  the  United 
States.  Justice  Ingraham,  of  the  New  York  Supreme  Court  says,  “I  have 
heard  cases  tried  in  England  quite  a  number  of  times,  both  at  the  Assizes  and 
in  London,  and  I  do  not  think  I  ever  heard  five  minutes  given  during  a  trial 
of  a  case  to  the  discussion  of  questions  of  evidence.  I  have  seen  case  after 
case  go  through  without  the  question  of  evidence  being  raised  at  all.16  This 
is  a  reform  which  any  judge  who  has  the  proper  conception  of  his  duty  may 
introduce  without  exceeding  his  legal  authority.17 

The  progress  of  criminal  trials  in  England  is  further  facilitated  by  a 
procedure  which  is  simple  and  expeditious,  and  which  relieves  the  trial  court 
of  the  preliminary  work  of  preparing  the  case  for  trial.  In  the  beginning  the 
case  is  taken  in  hand  by  a  master  who  whips  it  into  shape,  and  engineers  it 
through  the  preliminary  stage,  after  which  a  trained  barrister  takes  it  in 
charge  and  it  is  quickly  disposed  of  by  the  court.  Thus  the  time  of  the  judge 
is  never  wasted  in  hearing  applications,  interlocutory  motions  and  other  mat¬ 
ters  which  may  as  well  be  disposed  of  out  of  court,  thus  leaving  the  court 
nothing  to  do  but  try  the  case.  The  English  system  of  pleading  has  in  late 
years  been  freed  from  technicalities,  so  that  not  only  has  the  evil  of  retrials 
been  greatly  reduced,  but  the  ability  of  the  courts  to  dispatch  business  has 

“Letter  of  Mr.  Crane  to  Mr.  Choate,  cited  above. 

“Justice  Brown  suggests  that  the  progress  of  the  trial  might  often  be  facili¬ 
tated  by  requiring  counsel  to  stand  while  examining  witnesses  and  by  prohibiting 
them  from  taking  notes.  Green  Bag,  Vol.  17,  p.  625. 

“Testimony  before  New  York  Commission  on  the  Law’s  Delay,  p.  247. 

“Judge  Kavanagh,  in  the  second  Shea  trial,  moved  apparently  by  the  com¬ 
plaint  which  had  been  made  against  the  conduct  of  the  judge  who  tried  the  first 
case  for  permitting  counsel  to  spend  entire  days  in  arguments  and  wrangles  and 
deeply  impressed,  as  he  says,  by  the  results  of  some  personal  observations  of  the 
procedure  of  the  English  courts  during  the  preceding  summer,  announced  to  counsel 
that  they  would  not  be  permitted  to  delay  the  trial  as  before,  but  that  points  raised 
on  the  admissibility  of  certain  evidence  would  be  decided  by  the  court  without 
argument. 


Crime  and  Capital  Punishment 


169 


largely  increased.18  Concerning  the  efficiency  of  the  English  procedure  and 
the  reasons  for  its  superiority  over  that  in  the  American  states,  Justice  Brown, 
recently  retired  from  the  supreme  court,  has  this  to  say: 

One  who  has  watched  day  by  day  the  practical  administration  of  justice 
in  an  English  court  cannot  but  be  struck  by  the  celerity,  accuracy,  and  disre¬ 
gard  of  mere  technicalities  with  which  business  is  transacted.  One  is  irre¬ 
sistibly  impelled  to  ask  himself  why  it  is  that,  with  the  reputation  of  Amer¬ 
icans  for  doing  everything  from  the  building  of  bridges  over  the  Nile  or 
battleships  for  Russia  and  Japan,  to  harvesting,  reaping,  plowing  and  even 
making  butter  by  machinery,  faster  than  other  people,  a  court  in  conser¬ 
vative  old  England  will  dispose  of  half  a  dozen  jury  cases  in  the  time  that 
would  be  required  here  for  dispatching  one.  The  cause  is  not  far  to 
seek.  It  lies  in  the  close  confinement  of  counsel  to  the  questions  at 
issue  and  the  prompt  interposition  of  the  court  to  prevent  delay.  The 
trial  is  conducted  by  men  trained  for  that  special  purpose,  whose  interest 
is  to  expedite  and  not  to  prolong  them.  No  time  is  wasted  in  immaterial  mat¬ 
ters.  Objections  to  testimony  are  discouraged,  rarely  argued  and  almost 
never  made  the  subject  of  exception.  The  testimony  is  confined  to  the  exact 
point  in  issue.  Mere  oratory  is  at  a  discount.  New  trials  are  rarely  granted. 
A  criminal  trial  especially  is  a  serious  business,  since  in  case  of  a  verdict 
of  guilty  it  is  all  up  with  the  defendant  and  nothing  can  save  him  from  pun¬ 
ishment  but  the  pardoning  power  of  the  Home  Secretary.  The  result  is  that 
homicides  are  infrequent,  and  offenders  rarely  escape  punishment  for  their 


19 


crimes. 

One  of  the ;  most  common  causes  for  the  breakdown  of  criminal  justice 
is  found  in  the 'workings  of  the  jury  system  in  the  form  in  which  it  exists  1 
in  America.  This  is  due  mainly  to  the  practice  by  which  the  jury  is  exalted7 
at  the  expense  of  the  judge  and  a  unanimous  verdict  required  to  convict. 
There  is  still  a  disposition,  as  in  Blackstone’s  day,  to  worship  the  jury  as  a 
sort  of  fetish  and  to  regard  the  judge  with  a  kind  of  superstitious  terror, 
although  nearly  everywhere  the  judges  are  popularly  elected  for  definite 
terms.  In  some  states  this  feeling  is  so  deep  rooted  that  juries  are,  by  the 
constitution,  made  judges  of  the  law  as  well  as  of  the  fact,20 land  practically 
everywhere  they  are  forbidden  to  even  listen  to  suggestions  from  the  court 
concerning  questions  of  fact.  As  Judge  Grosscup  well  says,  the  American 


18Every  well-informed  lawyer  and  judge  who  testified  before  the  New  York 
Commission  on  the  Law’s  Delay  commended  the  efficiency  of  the  English  courts. 
T.  Newton  Crane  declared  that  the  “promptness  and  dispatch”  with  which  they  tried 
cases  was  “auite  incredible  to  the  patient  New  York  lawyer  who  was  accustomed 
to  wait  three  years  for  the  first  opportunity  to  try  a  jury  case.”  Justice  Fried¬ 
man,  of  New  York,  stated  that  the  “results  in  England  were  truly  great,”  and 
others  gave  similar  opinions.  (Report,  pp.  77,  277.)  The  English  master  of 
judicial  statistics,  in  a  letter  to  Ambassador  Choate  under  date  of  April  16,  1903, 
stated  that  twenty-three  judges  sitting  at  London  handle  all  the  litigation  of 
England  and  Wales,  with  a  population  of  over  32,500,000,  and  that  they  actually 
try  and  determine  an  average  of  5,600  cases  a  year,  or  more  than  twice  as  many 
as  are  tried  by  forty-three  judges  in  New  York  and  Kings  Counties.  (Report  of 
Com.  on  Law’s  Delay,  pp.  76,  106.) 

19Green  Bag,  Vol.  XVII,  p.  624. 

20This  is  true  in  Illinois.  A  bill  to  limit  the  power  of  juries  to  the  determina¬ 
tion  of  questions  of  fact  is  now  before  the  Illinois  legislature.  It  was  drawn  by 
Ex-Judge  Stein,  of  Chicago,  and  has  been  recommended  by  the  Supreme  Court, 
which  is  required  by  the  constitution  to  study  defects  in  the  laws  and  suggest 
such  alterations  as  it  may  think  proper. 


170 


The  Annals  of  the  American  Academy 


judge  is  practically  not  allowed  to  take  part  in  the  trial  of  cases.  His  posi¬ 
tion  is  rather  that  of  an  umpire  or  moderator  than  of  a  judge  in  any  real 
or  vital  sense.  He  may  listen  to  applications  of  various  kinds  and  make 
rulings  or  motions,  but  he  cannot  comment  on  the  evidence,  or  review  the 
facts,  sifting  out  the  material  from  the  immaterial,  and  putting  them  before 
the  jury  in  intelligible  and  coherent  form.  It  matters  not  how  much  counsel 
may  confuse  and  mislead  the  jury  by  their  arguments,  the  judge  cannot  set 
them  right  before  giving  the  case  into  their  hands.  Secretary  Taft  in  a  recent 
address  complained  of  the  position  of  impotency  to  which  American  judges 
have  been  reduced,  and  advocated  the  restoration  to  them  of  some  of  the 
powers  which  English  judges  enjoy  at  common  law,  especially  if  the  una¬ 
nimity  rule  as  to  verdicts  is  to  be  retained. 

The  weakest  point  in  the  jury  system  is  the  rule  requiring  unanimous 
verdicts  to  convict.  Although  time  honored,  there  have  always  been  some 
to  see  the  absurdity  of  the  rule.  Hallam,  in  his  “Middle  Ages,”  called  it  a  “pre¬ 
posterous  relic  of  barbarism;  Jeremy  Bentham  and  Francis  Lieber  inveighed 
against  it,  and  Judge  Cooley,  in  his  edition  of  Blackstone,  declared  that  the 
rule  was  “repugnant  to  all  experience  of  human  conduct,  passions  and  under¬ 
standings,”  and  asserted  that  “it  could  hardly  in  any  age  have  been  intro¬ 
duced  into  practice  by  a  deliberate  act  of  the  legislature.”  Justices  Miller  and 
Brown,  of  the  United  States  Supreme  Court,  and  ex-Judge  William  H.  Taft, 
are  all  on  record  as  favoring  a  modification  of  the  rule.  Justice  Ingraham,  of 
the  New  York  Supreme  Court,  has  suggested  the  possibility  of  adopting  a  rule 
making  a  verdict  by  three-fourths  of  the  jury  sufficient  to  convict,  subject 
to  the  approval  of  the  presiding  judge.21  Nowhere  on  the  continent  of  Europe 
does  the  unanimity  requirement  prevail.  In  Germany,  Austria  and  Portugal, 
a  verdict  may  be  returned  by  two-thirds  of  the  jury;  in  France  and  Italy  by 
a  bare  majority,  and  in  the  Netherlands,  where  crime  is  almost  non-existent, 
trial  by  jury  does  not  prevail  at  all.  In  Scotland,  curiously  enough,  a  unani¬ 
mous  verdict  is  required  to  convict  in  civil  cases  while  a  two-thirds  verdict 
suffices  in  criminal  cases.  In  England  the  unanimity  rule  still  prevails  but 
juries  are  never  empowered,  except  in  libel  cases,  to  pass  on  questions  of  law, 
and  in  determining  questions  of  fact  they  are  so  much  under  the  control  of 
the  court  that  many  of  the  abuses  which  result  from  jury  trials  in  the  United 

0 

States  are  avoided.  The  theory  upon  which  the  unanimity  rule  rests  is  that 
twelve  men  may  be  found  who  will  take  the  same  view  of  a  disputed  fact, 
that  the  balance  of  each  juror’s  mind  can  be  struck  in  the  same  direction,  that 
all  are  able  to  feel  the  same  cogency  of  proof  and  that  no  one  can  be  drawn 
to  a  conclusion  different  from  that  at  which  his  fellows  have  arrived.22  It  is 
needless  to  say  that  such  conditions  are  rarely  present  in  the  minds  of  twelve 
men  picked  up  at  random  from  the  community.  The  result  is  that  in  many 
cases  the  unanimity  is  apparent  and  not  real.  Everyone  is  familiar  with 

21Report  of  N.  Y.  State  Com.  on  Law’s  Delay,  p.  256.  Judge  Gibbons,  of 
Chicago,  recently,  in  a  letter  to  the  Board  of  Cook  County  Commissioners,  recom¬ 
mended  the  abolition  of  the  unanimity  requirement  and  the  substitution  of  a  rule 
making  a  verdict  by  three-fourths  of  the  jury  sufficient  to  convict. 

22Compare,  “Forsythe,  Trial  by  Jury,”  p.  205. 

(6i°) 


Crime  and  Capital  Punishment 


171 

cases  in  which  a  single  juror  has  set  at  naught  the  opinions  of  eleven — has, 
by  sheer  obstinacy  and  power  of  physical  endurance,  compelled  his  associates 
to  return  verdicts  which  did  not  represent  their  real  convictions,  or  driven 
them  to  disagreements,  in  either  case  defeating  justice.  The  unanimity  rule 
gives  too  much  power  to  one  man.  It  virtually  places  the  protection  of  the 
community  in  the  hands  of  a  single  individual  who  is  often  selected  without 
regard  to  mental  or  moral  qualification. 

It  is  well  known  that  verdicts  are  often  .compromises.  The  hard  lot  of 
the  juror  who  is  kept  away  from  his  home  and  business  often  tends  to  drive 
him  to  yield  a  few  points  and  ultimately  to  sacrifice  his  real  conviction  in 
order  to  escape  from  the  discomforts  and  hardships  incident  to  jury  service 
in  protracted  cases.  In  many  of  the  American  states  the  unanimity  require¬ 
ment  in  the  trial  of  civil  cases  has  been  dispensed  with,  and  in  a  considerable 
number  of  states  the  jury  may  be  waived  altogether  with  the  consent  of 
the  parties.  Likewise  in  a  number  of  states  the  constitution  permits  verdicts 
to  be  returned  by  less  than  twelve  jurors  in  cases  involving  misdemeanors, 
and  in  several  (Louisiana  and  Montana,  for  example)  a  verdict  by  two-thirds 
of  the  jury  may  suffice  for  conviction  in  all  cases  not  amounting  to  felony. 
Everywhere  there  is  evidence  of  increasing  dissatisfaction  with  the  results 
of  the  unanimity  rule. 

One  of  the  principal  weaknesses  of  the  jury  system  is  the  rule  which 
requires  the  jury  to  be  satisfied  beyond  a  reasonable  doubt  of  the  guilt  of  the 
accused  before  returning  a  verdict  of  conviction.  As  if  this  were  not  enough, 
we  not  infrequently  find  the  courts  delivering  instructions  to  juries  to  give 
the  “most  charitable  and  merciful  construction”  to  the  facts.  This  rule, 
together  with  the  sacrosanct  interpretation  given  to  the  doctrine  of  presumed 
innocence,  a  presumption  which,  as  Dean  Huffcut  well  observed,  is  raised  by 
some  courts  to  the  value  of  actual  proof  of  innocence,  enables  a  large  pro¬ 
portion  of  criminals  to  escape  punishment.  Both  rules  are  no  doubt  the 
means  of  occasionally  saving  an  innocent  man,  but  by  weakening  public 
confidence  in  the  courts  and  encouraging  crime  they  have  caused  the  death 
of  many  times  the  number  of  those  whom  they  have  judicially  shielded.23  The 
rule  as  to  reasonable  doubt  should  be  abolished  and  the  jury  required  to 
convict  when  satisfied  by  a  fair  preponderance  of  the  evidence  of  the  guilt 
of  the  accused. 

The  most  prolific  source  of  the  law’s  delay  is  the  American  practice  of 
allowing  appeals  almost  as  a  matter  of  course  and  of  reversing  the  decisions 
of  lower  courts  upon  technical  errors  and  granting  new  trials  to  criminals 
who  have  already  been  convicted.  The  rule  also  contributes  powerfully 
to  the  encouragement  of  litigation,  and  so  frequently  ends  in  flagrant 
miscarriages  of  justice  as  to  impair  seriously  the  public  confidence  in  our 
present  system  of  criminal  justice.  Justice  Brown  hardly  exaggerated  the 
facts  when  he  said  that,  according  to  American  procedure,  the  rendering  of 
the  verdict  is  only  the  beginning  of  the  trial  in  serious  criminal  cases.  The 
Supreme  Court  reports  of  all  our  states  are  full  of  cases  illustrating  the 

“On  this  point  compare  the  opinion  of  Everett  P.  Wheeler,  in  Columbia  Law 
Review,  Vol.  IV,  p.  356. 


(6n) 


IJ2  The  Annals  of  the  American  Academy 

* 

truth  of  Justice  Brown’s  statement.  Judge  Everett  P.  Wheeler,  in  an  article 
in  the  Columbia  Law  Review f*  cites  the  case  of  a  negro  desperado  in  New 
York  who  had  been  tried  three  times  for  the  same  murder,  and  while  awaiting 
his  fourth  trial  escaped  and  was  shot  in  December,  1900,  while  resisting 
arrest.  He  quotes  the  New  York  Times  of  July  16,  1903,  for  an  account  of 
the  lynching  of  a  murderer  who  had  been  twice  found  guilty  by  the  unanimous 
verdict  of  a  jury  and  twice  granted  new  trials  on  technical  grounds.  After 
the  third  conviction  he  was  lynched  by  a  mob  composed  of  the  citizens  of 
the  community,  who  doubtless  feared  that  a  fourth  trial  would  follow,  ending 
in  the  acquittal  of  the  criminal.  A  somewhat  similar  case  was  the  lynching 
of  a  murderer  at  Tallulah,  Louisiana,  last  summer.  After  having  been  con¬ 
victed  and  sentenced  to  death,  the  Supreme  Court  reversed  the  decision  of 
the  lower  court  on  a  technicality  and  ordered  a  new  trial.  The  second  trial 
was  interrupted  by  the  death  of  a  member  of  the  judge’s  family,  and  when 
the  third  trial  was  begun  the  plea  of  “double  jeopardy”  was  set  up,  whereupon 
the  case  was  sent  up  to  the  Supreme  Court  for  a  ruling  on  this  point.  At 
this  juncture,  two  years  and  three  months  having  elapsed  since  the  offense 
was  committed,  the  citizens,  disgusted  at  the  attempt  to  punish  by  due  process 
of  law  a  murderer  concerning  whose  guilt  there  seems  to  have  never  been 
any  doubt,  took  the  law  into  their  own  hands  and  inflicted  the  punishment 
themselves.  Such  cases  remind  us  that  there  may  be  an  element  of  truth  in 
Goldwin  Smith’s  dictum  that  there  are  communities  in  the  United  States 
where  lynch  law  is  better  than  any  other.  Dean  Huffcut,  in  an  address  on 
the  “Administration  of  the  Criminal  Law,”  delivered  at  Cornell  University 
on  December  6  last,  referred  to  a  murder  case  which  had  been  tried  substan¬ 
tially  three  times  and  which  had  lately  been  disposed  of,  more  than  seven 
years  after  the  offense  was  committed.23  The  first  trial  had  failed  near  its 
close  by  the  illness  of  a  juror;  the  conviction  upon  the  second  trial  had  been 
set  aside  by  the  Court  of  Appeals  for  error;  upon  third  trial  he  was  again 
convicted,  and  the  judgment  was  sustained  by  the  court  of  last  resort.  The 
Chicago  papers  some  time  ago  gave  an  account  of  a  personal  injury  case 
that  had  been  up  to  the  Supreme  Court  four  times  and  was  then  getting  ready 
for  its  fifth  journey  to  Springfield.  Instances  like  these  might  be  multiplied 
indefinitely.  They  are  extreme  cases,  it  is  true,  but  they  are  not  rare,  and 
they  illustrate  a  growing,  not  to  say  intolerable,  evil  in  our  judicial  procedure. 

The  pernicious  American  doctrine  that  error  in  the  procedure  of  the  trial 
court  shall  be  presumed  to  have  affected  prejudicially  the  rights  of  the  de¬ 
fendant,  and  the  practice  of  appellate  courts  in  granting  new  trials,  even  when 
it  can  be  affirmatively  shown  that  the  error  complained  of  was  immaterial, 
are  doing  more  than  anything  else  to  multiply  appeals,  diminish  popular  con¬ 
fidence  in  the  courts  and  thwart  justice.  The  following  are  some  of  the 
grounds  actually  assigned  by  appellate  courts  for  reversing  the  convictions  of 
lower  courts  and  allowing  new  trials :  Because  the  indictment  contained  the 
name  of  the  state  in  abbreviated  form ;  because  the  word  “feloniously”  was 

24Vol.  IV,  p.  360. 

25For  reference  to  a  number  of  similar  cases,  see  an  article  by  Nathan  Smyth 
in  the  Harvard  Law  Review,  Vol.  XVII,  p.  321. 


\ 

Crime  and  Capital  Punishment  173 

omitted  from  the  indictment,  although  the  evidence  showed  that  the  crime 
was  committed  feloniously;  because  the  words  “person  or  human  being”  were 
omitted  from  the  indictment;  because  it  did  not  appear  from  the  record  of 
the  trial  court  that  the  accused  had  been  arraigned  and  pleaded  (as  if  he 
could  have  been  tried  without  being  arraigned  and  without  pleading)  ;  because 
the  jury  reached  a  verdict  on  Sunday;  because  the  defendant  was  allowed  to 
offer  evidence  as  to  his  good  reputation  for  honesty  and  integrity,  but  not 
for  truth  and  veracity  (thus  assuming  that  the  jury  might  not  believe  the 
testimony  as  to  the  former,  but  might  believe  it  as  to  the  latter)  ;  because 
the  judge  was  absent  from  the  trial  three  minutes;  because  witnesses  were 
allowed  to  testify  that  at  the  time  of  the  murder  bystanders  shouted  “fire,” 
“murder,”  etc.,  all  of  which  were  prejudicial  to  the  right  of  the  accused;  be¬ 
cause  the  words  “on  oath”  were  omitted  from  the  indictment;  because  the 
officer  who  summoned  the  jury  was  not  specially  sworn;  because  the  evidence 
on  which  a  notorious  robber  was  convicted  failed  to  show  whether  the  stolen 
goods  were  in  coin  or  bills ;  because  evidence  was  admitted  regarding  former 
crimes  committed  by  the  accused,  etc.28  This  list  is  taken  from  actual  cases  and 
might  be  multiplied  indefinitely  if  it  were  thought  necessary.  Some  of  the 
instances  of  the  enforcement  of  the  rule  of  presumed  prejudice  regarding 
error  in  judicial  procedure,  says  Dean  Wigmore,  one  of  the  leading  authori¬ 
ties  on  the  law  of  evidence,  would  seem  incredible  even  in  the  justice  of  a 
tribe  of  African  fetish  worshipers.  The  exaggerated  form  which  it  takes  in 
America  tends  to  reduce  the  trial  to  a  mere  contest  over  errors  rather  than 
a  serious  quest  for  justice — a  sort  of  game  which  the  clever  lawyer  who  has 
no  case  on  the  merits  seeks  to  play  in  such  a  way  as  to  entrap  the  court  into 
committing  an  error  which  will  form  the  basis  of  a  new  trial.  In  the  ordinary 
course  the  judge  is  requested  to  charge  the  jury  on  certain  propositions.  If  he 
refuses  and  the  accused  is  convicted  a  bill  of  exceptions  follows  and  the  case 
is  appealed.  In  some  states,  if  the  judge  neglects  to  charge  the  jury  on  every 
point  involved  in  the  case,  the  defendant,  if  convicted,  is  entitled  to  a  new 
trial.  If  he  errs  in  his  statement  regarding  the  applicability  of  the  law,  he 
lays  the  basis  for  a  new  trial.  If  he  permits  the  introduction  of  certain  evi¬ 
dence,  even  though  it  is  improper,  merely  because  of  its  logical  irrelevancy,  and 
should  be  excluded  only  for  the  purpose  of  saving  time,  the  presumption  is 
that  it  affects  prejudicially  the  case  of  the  defendant,  and  he  is  entitled  to  a 
new  trial.  Likewise,  where  the  court  admits  hearsay  evidence,  the  presump¬ 
tion  is  that  the  jury  are  incapable  of  weighing  and  discounting  it,  although 
perfectly  capable  of  weighing  and  estimating  the  value  of  material  evidence, 
and  hence  the  admission  of  such  evidence  is  treated  as  a  fatal  error.  Thus 
the  judge  is  surrounded  on  every  side  by  pitfalls  set  by  ingenious  counsel, 
and  in  the  trial  of  great  criminal  cases  there  are  few  who  are  able  to  pass 
the  ordeal  without  falling  into  at  least  one  of  the  traps  thus  set.27 

The  practice  of  allowing  new  trials  upon  trifling  errors  has  become  an 
evil  so  serious  as  to  bring  our  system  of  criminal  justice  into  great  disrepute. 

26Compare  an  article  by  George  W.  Alger  in  the  Atlantic  Monthly,  Vol.  XCVII, 
p.  502. 

27Atlantic  Monthly,  Vol.  XCVII,  p.  502. 

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174 


The  Annals  of  the  American  Academy 


A  committee  of  the  American  Bar  Association,  after  an  investigation  of  the 
subject  in  1887,  reported  that  new  trials  were  granted  in  forty-six  per  cent 
of  all  cases  brought  under  review  in  the  appellate  courts  of  this  country. 
The  Commission  on  the  Law’s  Delay,  created  by  the  authority  of  the  legisla¬ 
ture  of  New  York  in  1903,  found  that  the  proportion  in  that  state  was  forty- 
two  per  cent.28  Upon  examination  of  the  Supreme  Court  reports  of  Illinois, 
covering  the  years  1903-05, 1  found  the  proportion  in  this  state  to  be  about  forty 
per  cent,  fifteen  of  the  twenty-five  criminal  cases  reversed  being  upon  errors 
which  could  hardly  be  considered  as  substantial  in  the  sense  that  they  could 
be  shown  affirmatively  to  prejudice  the  rights  of  the  accused.  A  large  propor¬ 
tion  of  the  reversals  were  founded  upon  errors  of  practice  and  procedure, 
and  related  principally  to  faulty  indictments  and  the  admission  or  exclusion 
of  certain  evidence.  A  similar  examination  of  the  Wisconsin  reports  showed 
the  proportion  of  reversals  to  be  about  thirty  per  cent  of  the  total  number 
of  appealed  cases.  A  comparison  of  these  figures  with  those  furnished  by 
the  master  of  judicial  statistics  in  England  affords  striking  evidence  of  the 
widely  different  attitude  taken  by  the  English  appellate  courts  toward  the 
question  of  error.  In  the  year  1900,  of  337  cases  appealed  from  the  High 
Court  of  Justice  only  fifteen  were  remanded  for  retrial,  and  in  1904,  of  555 
cases  reviewed  by  the  Court  of  Appeal  only  nine  were  remanded  for  new 
trials.29  Federal  Judge  Amidon,  of  North  Dakota,  in  an  address  before  the 
Minnesota  Bar  Association  last  year,  stated  that  he  had  personally  examined 
the  law  reports  of  England  covering  the  period  from  1890  to  1900,  with  the  re¬ 
sult  that  he  found  that  of  all  the  cases  reviewed  on  appeal  in  that  country  new 
trials  were  granted  in  less  than  three  and  a  half  per  cent.  It  is  a  rule  of  the 
English  procedure  that  no  judgment  or  verdict  of  a  lower  court  shall  be 
disturbed  or  a  new  trial  granted  for  error  if  there  were  sufficient  evidence 
to  justify  the  judgment  or  verdict,  or  if  evidence  erroneously  excluded  would 
not,  in  th°  opinion  of  the  Appellate  Court,  have  changed  the  result  if  it  had 
been  admitted.  In  other  words,  judgment  is  rendered  on  the  merits  of  the 
case,  and  not  on  mere  considerations  of  technical  error  in  the  record  or 
upon  questions  collateral  thereto.  Instead  of  presuming  that  error  in  the 
trial  below  is  prejudicial  to  the  defendant,  the  presumption  is  that  it  is 
harmless,  and  it  is  incumbent  upon  the  appellant  to  show  the  contrary. 

One  of  the  results  of  the  strict  enforcement  of  this  rule  by  the  English 
appellate  courts  is  a  reduction  in  the  number  of  cases  appealed.  A  defeated 
party  who  has  no  case  on  its  merits  can  have  no  incentive  to  take  an  appeal. 
He  knows  well  that  there  is  no  chance  of  securing  a  reversal  upon  immaterial 
errors  of  the  court  below.  The  consequence  is  that  not  more  than  one  case 
in  ten  is  appealed  from  the  high  court,  whereas  in  New  York  State  it  is 
said  that  on  an  average  thirty-three  per  cent  of  the  cases  tried  in  the  first 
department  of  the  Supreme  Court  are  appealed.30  The  English  procedure 

^Commission  on  Law’s  Delay,  p.  246. 

^Letter  of  T.  Newton  Crane  to  Ambassador  Choate,  cited  above.  (N.  Y.  Com. 
on  Law’s  Delay,  p.  112.) 

30Report  Com.  on  Law’s  Delay,  pp.  34,  76,  246.  In  all  England  in  1903  there 
were  only  1,272  cases  appealed  to  the  higher  courts,  while  in  two  departments  of 


Crime  and  Capital  Punishment 


175 


does  not  allow  a  bill  of  exceptions  to  be  filed  and  argued.  If  there  is  dis¬ 
satisfaction  with  the  verdict  or  judgment,  application  may  be  made  to  the 
Appellate  Court  in  writing,  accompanied  by  copies  of  the  pleadings  and  evi¬ 
dence  made  from  stenographic  reports. 

Moreover,  the  English  appellate  judge  has  all  the  powers  of  the  trial 
judge,  and  he  may  make  any  order  or  judgment  which  ought  to  have  been 
made  by  the  trial  court.  If  by  reason  of  error  below  a  wrong  judgment  was 
entered,  the  Appellate  Court  may  enter  the  judgment  which  justice  requires 
instead  of  sending  the  case  back  for  retrial  upon  errors  which  were  not  clearly 
prejudicial  to  the  right  of  the  accused.  In  other  words,  the  English  appellate 
courts  proceed  on  the  principle  that  it  is  their  business  to  administer  justice 
as  well  as  the  law — a  sensible  rule,  which  originally  existed  at  common  law, 
but,  like  many  of  the  other  common  law  rules  of  legal  procedure,  has  been 
changed  by  statute  or  custom. 

It  is  gratifying  to  note  that  a  beginning  is  being  made  in  some  of  the 
states  toward  reforming  the  abuses  of  appellate  procedure.  Thus  the  code 
of  criminal  procedure  of  New  York  (section  542)  declares  that  in  capital 
cases  the  Appellate  Court  must  give  judgment  without  regard  to  technical 
errors  or  defects  or  to  exceptions  which  do  not  affect  the  substantial  rights 
of  the  parties,  and  under  the  practice  of  the  Court  of  Appeals  the  obligation 
rests  on  the  appellant  to  show  that  the  error  complained  of  was  prejudicial, 
that  is,  that  but  for  the  error  the  result  would  have  been  different.  The 
same  principle  has  been  embodied  in  the  new  law  for  the  establishment  of 
the  Chicago  municipal  court.  This  law  provides  that  no  order  or  judg¬ 
ment  of  the  municipal  court  shall  be  reversed  by  the  Appellate  Court  or 
the  Supreme  Court  unless  they  shall  be  satisfied  that  the  order  or  judgment 
was  contrary  to  law  and  the  evidence  or  resulted  from  substantial  errors 
directly  affecting  the  matters  at  issue.  Moreover,  the  Appellate  Court  is 
empowered  to  enter  such  order  or  judgment  as  in  its  opinion  the  municipal 
court  ought  to  have  entered,  instead  of  sending  the  case  back  for  retrial. 
There  seems  to  be  no  good  reason  why  the  rule  in  New  York  should  not 
be  extended  to  cover  the  review  of  other  than  capital  cases  and  that  the  rule 
in  Illinois  should  not  apply  to  cases  appealed  from  other  than  the  municipal 
court  of  Chicago. 

It  is  the  testimony  of  the  best  lawyers  and  jurists  throughout  the 
country  that  the  interests  of  justice  and  social  order  require  a  restriction  of 
the  right  of  appeal  to  more  reasonable  limits.  Justice  Gaynor,  of  New  York, 
in  his  testimony  before  the  Commission  on  the  Law’s  Delay,  stated  the 
matter  tersely  when  he  declared  that  appellate  courts  review  too  many  things, 
and  that  in  our  present  procedure  “appeals  have  come  to  be  pretty  nearly 
the  principal  thing.”31  Attorney  Hirschberg,  testifying  before  the  same  com¬ 
mission,  asserted  that  the  great  difficulty  with  our  procedure  was  that  it  is 
“distinctly  an  appellate  system,”  that  it  is  based  upon  the  “fundamental  idea 
that  a  trial  and  a  decision  are  always  wrong,”  and  that  as  a  result  of  the 

the  New  York  appellate  division  (New  York  City  and  Brooklyn)  there  were  2,952 
appeals. 

31P.  267. 


176 


The  Annals  of  the  American  Academy 


opportunities  thus  afforded  the  temptation  to  indulge  in  litigation  is  vastly 
enhanced.32  To  the  same  effect  was  the  opinion  of  Justice  O’Gorman  who 
stated  that  nearly  every  defeated  party  was  willing  to  take  a  chance  of  secur¬ 
ing  a  reversal  on  appeal  and  that  they  had  every  encouragement  to  do  so.33 
Dean  Huffcut  in  an  address  already  referred  to  declared  that  the  remedy  for 
the  evil  described  was  to  provide  that  any  appeal  not  brought  on  for  hearing 
within  six  months  after  it  is  taken  should  be  stricken  from  the  files  and  that 
in  addition  it  should  be  provided  that  no  case  should  be  reversed  unless  it  is 
affirmatively  shown  upon  the  whole  record  that  the  error  complained  of  has 
been  prejudicial  to  the  defendant  and  has  resulted  in  a  miscarriage  of  justice. 
If  this  were  done,  he  declared,  appeals  would  not  only  be  fewer  in  number 
but  would  also  be  more  speedily  pressed  and  with  smaller  chance  of  success.34 
President  Roosevelt  in  his  last  annual  message  strongly  recommended  the 
incorporation  of  this  rule  into  Federal  procedure,  and  bills  for  its  introduc¬ 
tion  into  state  procedure  are  now  before  the  legislatures  of  a  number  of 
states.  The  want  of  it  is,  as  a  well-known  jurist  has  observed,  more  respon¬ 
sible  than  any  other  one  cause  for  the  courts  which  are  conducted  by  Judge 
Lynch.35  It  is  the  American  practice  to  allow  appeals  as  a  matter  of  course, 
with  little  regard  to  the  merits  of  the  case.  This  privilege  should  be  limited, 
as  in  England,  to  cases  where  the  trial  judge  in  his  discretion  reserves  for 
review  by  the  higher  court  some  question  of  law  which  he  considers  doubtful 
and  has  decided  adversely  to  the  defendant.30  It  is  no  infringement  upon  the 
right  of  any  person  who  has  been  convicted  by  the  unanimous  verdict  of  a 
jury  chosen  from  his  neighborhood  to  say  that  he  shall  not  be  given  another 
chance  to  establish  his  innocence,  unless  it  can  be  affirmatively  shown  that 
substantial  justice  was  not  done  in  the- first  trial.  The  present  wide  latitude 
of  appeal,  although  in  theory  open  to  all,  is  in  fact  practically  closed  to  the 
poor  litigant  on  account  of  the  expense  involved.  The  rule  thus  operates 
to  the  great  advantage  of  the  well-to-do  litigant  by  opening  an  avenue  of 
possible  escape  which  is  in  practice  denied  to  the  man  without  means.  It  is 
a  common  saying  which  is  becoming  truer  all  the  time  that  the  rich  criminal 
with  unlimited  means  at  his  disposal  can,  through  the  process  of  appeals  and 
new  trials,  escape  the  punishment  which  he  deserves  and  which  he  would 
receive  if  he  were  a  poor  man.37  Any  system  of  criminal  justice  which  makes 
possible  any  such  inequality  in  the  administration  of  the  criminal  law  is 

fundamentally  wrong  in  principle  and  dangerous  in  practice.  It  not  only 

• 

32Report  Com.  on  Law’s  Delay,  p.  269. 

33 Ibid p.  319. 

34Ithaca  Evening  Journal,  Dec.  6,  1906. 

35Michigan  Law  Review,  Vol.  Ill,  p.  262. 

36Compare  Smyth,  “The  Abuse  of  New  Trials,”  Harvard  Law  Review,  Vol. 
XVII,  p.  317. 

37Speaking  on  this  point  to  the  students  of  Cornell  University,  Ex-President 
Andrew  D.  White  recently  said  :  “While  the  number  of  murders  is  rapidly  increas¬ 
ing,  the  procedure  against  them  is  becoming  more  and  more  ineffective,  and,  in 
the  light  of  recent  cases  in  New  York  and  elsewhere,  is  seen  to  be  a  farce.  One 
of  the  worst  results  of  these  cases  is  the  growing  opinion  among  the  people  at 
large  that  men  with  money  can  so  delay  justice  by  every  sort  of  chicanery  that 
there  is  a  virtual  immunity  from  punishment  for  the  highest  crimes.” 

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Crime  and  Capital  Punishment 


*77 


encourages  lawlessness  among  the  upper  classes  but  impairs  the  confidence  of 
the  lower  classes  in  the  courts  and  promotes  the  spirit  of  lynch  law  and 
anarchy  among  them.  Some  valuable  lessons  might  well  be  learned  by  our 
legal  reformers  from  the  English  and  continental  practice.  It  has  not  been 
very  many  years  since  England  was  agitated  over  the  situation  arising  from 
the  virtual  breakdown  of  her  judicial  machinery,  but  they  set  about  in  a 
quiet  way  to  make  improvements,  with  the  result  that  they  have  brought  their 
judicial  system  up  to  a  plane  of  efficiency  which  has  not  yet  been  attained 
in  any  American  state.  The  New  York  State  Commission  on  the  Law's 
Delay  reported  that  it  had  been  ‘‘profoundly  impressed”  by  the  character  and 
results  of  the  English  procedure,  and  declared  that  the  English  courts  from 
having  been  the  most  dilatory  in  the  world  had  become  in  recent  years  the 
most  expeditious,  and  expressed  the  opinion  that  we  “could  not  do  better 
than  adopt  some  of  these  modern  methods  of  procedure  which  have  been  so 
thoroughly  tested  in  England  and  have  proven  to  work  so  well.”28 

The  English  have  largely  freed  their  procedure  from  technicalities,  have 
simplified  it  and  made  it  less  cumbersome  and  expensive,  have  raised  the 
judge  to  a  more  commanding  position  in  the  conduct  of  the  trial,  and  assigned 
the  jury  its  true  place,  have  abolished  the  doctrine  of  presumed  error,  re¬ 
stricted  the  privilege  of  appeal  to  more  reasonable  limits,  and  in  various  other 
ways  provided  a  procedure  which,  to  an  American  lawyer  accustomed  to 
the  delays  and  uncertainties  of  our  system,  seems  wonderful  indeed.39  The 
procedure  of  the  German  courts  since  the  adoption  of  the  imperial  codes 
presents  many  features  analagous  to  that  of  England.  There  are  no  techni¬ 
calities  in  pleading;  the  judge  participates  in  determining  what  shall  be 
proved  and  when  and  in  what  manner  the  proof  is  to  be  made ;  the  rules  of 
evidence  are  simple,  trials  are  promptly  started  and  rapidly  expedited,  and 
criminals  are  punished  with  a  degree  of  certainty  unknown  in  America.40  In 
France,  likewise,  the  criminal  law  is  administered  in  a  way  which  serves 
as  an  effective  deterrent  of  crime  and  secures  general  respect  for  law  and 
authority. 

Before  we  may  hope  for  a  thorough-going  reform  of  the  American  system 
there  must  be  an  entire  change  of  attitude  upon  the  part  of  the  people  with 
regard  to  the  enforcement  of  law,  the  rights  of  the  community  as  against 
criminals  and  the  purpose  of  judicial  punishment.  The  bench  and  bar  must  also 
take  a  more  common-sense  view  of  the  whole  question  of  the  fundamental  pur¬ 
pose  of  a  judicial  trial.  There  must  be  less  disposition  to  subordinate  substan- 

^Report,  pp.  32,  34. 

39The  New  York  Commission  on  the  Law’s  Delay,  speaking  of  the  English  sys¬ 
tem,  declared  that  “it  has  undergone  many  important  changes  in  practice  to 
meet  the  requirements  of  modern  social  and  business  conditions  in  England,  and 
that  much  of  our  own  practice,  time-honored  and  tolerated  because  ‘made  in 
England,’  has  been  displaced  by  more  modern  methods  of  procedure,  and  is  obsolete 
in  the  land  from  which  it  came — changes  which  have  worked  havoc  with  many 
venerable  notions  and  reversed  precedents  to  which  our  American  courts  fondly 
cling.”  (P.  75.) 

40Compare  an  article  by  Rudolf  Dillon  in  the  Twenty-fifth  Annual  Report  of 
the  New  York  State  Bar  Association. 

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The  Annals  of  the  American  Academy 


tive  justice  to  mere  matters  of  practice.  It  is  also  worth  considering  whether 
the  time  has  not  come  when  some  of  the  presumptions  of  our  law  should  not 
be  resolved  in  favor  of  the  community  rather  than  in  favor  of  the  criminal,  and 
whether  we  should  not  act  more  upon  the  principle  that  the  primary  purpose  of 
a  system  of  criminal  justice  is  to  protect  the  innocent  members  of  society  rather 
than  the  criminal  class. (  Our  present  methods  had  their  origin  in  an  age  when 
the  number  of  capital  crimes  was  appallingly  large  and  when  offenders  were 
disproportionately  punished  for  minor  offenses.  To  make  it  difficult  to  punish 
persons  charged  with  crime  in  such  an  age  a  procedure  was  developed  which 
provided  every  possible  loophole  of  escape  for  the  accused.  The  old  severity 
of  penal  legislation,  however,  has  long  ago  been  abolished,  yet  the  old 
methods  of  procedure,  with  all  the  safeguards  which  they  threw  around  the 
criminal,  are  still  retained.  They  are  totally  inapplicable  to  present  conditions, 
and  in  the  interest  of  real  justice  as  well  as  social  security,  they  ought  to  be 
modified  as  they  have  been  in  England  where  they  originated.  Our  duty 
in  the  premises  was  well  stated  by  President  Roosevelt  in  a  letter  to  Governor 
Durbin,  of  Indiana,  in  August,  1903.  He  said :  “The  best  and  immediate 
efforts  of  all  legislators,  judges  and  citizens  should  be  addressed  to  securing 
such  reforms  in  our  legal  procedure  as  to  leave  no  vestige  of  excuse  for  those 
misguided  men  who  undertake  to  reap  vengeance  through  violent  methods. 
We  must  show  that  the  law  is  adequate  to  deal  with  crime  by  freeing  it  from 
every  vestige  of  technicality  or  delay.” 


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